IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

GILA RIVER INDIAN COMMUNITY, Appellant,

v.

DEPARTMENT OF CHILD SAFETY, SARAH H., JEREMY H., A.D., 

Appellees.

No. 1 CA-JV 16-0038

Appeal from the Superior Court in Maricopa County

No. JD528014

The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Office of General Counsel for the Gila River Indian Community, Sacaton

By Linus Everling, Thomas L. Murphy, Mandy Cisneros

Co-Counsel for Appellant Gila River Indian Community

Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, L.L.P., Tempe

By April E. Olson

Co-Counsel for Appellant Gila River Indian Community

Arizona Attorney General’s Office, Tucson

By Dawn R. Williams

Counsel for Appellee Department of Child Safety
2

Scharf-Norton Center for Constitutional Litigation at the Goldwater 

Institute, Phoenix

By James Manley, Aditya Dynar

Counsel for Appellees S.H. and J.H.

Office of the Legal Advocate, Phoenix

By Tiffany Mastin

Guardian ad Litem for Appellee A.D.

Office of the General Counsel for the Salt River Pima-Maricopa Indian 

Community, Scottsdale

By Cheryl J. Scott

Counsel for Amici Curiae Salt River Pima-Maricopa Indian Community, 

Cherokee Nation, and the Native American Bar Association of Arizona

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.

W I N T H R O P, Judge:

¶1 Following termination of the parental rights of the biological 

parents of A.D., an Indian child and eligible member of the Gila River 

Indian Community (“the Community”),

1 the Community moved for an 

order transferring jurisdiction of the matter to its Children’s Court. The 

Maricopa County Juvenile Court denied the motion, and the Community

appealed. We hold that 25 U.S.C. § 1911(b) of the Indian Child Welfare Act 

(“ICWA”),

2 which the Community argues requires transfer, does not allow 

 

1 The Community is a federally recognized Indian tribe.

2 ICWA is a federal statute enacted to address “the consequences to 

Indian children, Indian families, and Indian tribes of abusive child welfare 

practices that resulted in the separation of large numbers of Indian children 

from their families and tribes through adoption or foster care placement, 

usually in non-Indian homes.” Memorandum from the United States 

Department of the Interior’s Office of the Solicitor on “Implementation of 

the Child Welfare Act by Legislative Rule” (June 8, 2016) (“2016 

Memorandum”). ICWA is codified at 25 U.S.C. §§ 1901 to 1963. See also
GRIC v. DCS, et al.

Opinion of the Court

3

jurisdiction to be transferred after parental rights have been terminated. 

Accordingly, we affirm the denial of the motion to transfer jurisdiction.

FACTS AND PROCEDURAL HISTORY3

I. The Underlying Proceedings

¶2 At the time of A.D.’s birth in 2014, both she and her biological 

mother (“M.D.”) tested positive for amphetamines and opiates.

4

Approximately one week later, the Arizona Department of Child Safety 

(“DCS”) removed her from the hospital and placed her with S.H. and J.H. 

(“the foster parents”), with whom she has since remained.

5

 

Bureau of Indian Affairs’ Indian Child Welfare Act Proceedings: Final Rule, 

81 Fed. Reg. 38778-38876 (June 14, 2016) (eff. Dec. 12, 2016) (to be codified 

at 25 C.F.R. pt. 23) (“2016 BIA Final Rule”); Bureau of Indian Affairs’ 

Guidelines for State Courts and Agencies in Indian Child Custody 

Proceedings, 80 Fed. Reg. 10146-10159 (Feb. 25, 2015) (“2015 BIA 

Guidelines”).

3 In general, we view the facts and reasonable inferences therefrom in 

the light most favorable to affirming the juvenile court’s order. Ariz. Dep’t 

of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 

2010).

4 M.D. is a member of the Community. At the time of A.D.’s birth, 

M.D. was not married, and the identity of A.D.’s biological father was never 

positively established. The record is unclear whether A.D. is actually 

enrolled or is simply eligible to enroll as a member of the Community. In 

either event, she qualifies as an “Indian child” for purposes of ICWA. See

25 U.S.C. § 1903(4) (“’Indian child’ means any unmarried person who is 

under age eighteen and is either (a) a member of an Indian tribe or (b) is 

eligible for membership in an Indian tribe and is the biological child of a 

member of an Indian tribe[.]”); see also 2016 Memorandum at 3 n.18.

5 The foster parents are non-Indians (and thus non-ICWA placement 

preference compliant, see 25 U.S.C. § 1915) who adopted another Indian 

child in 2013. By all accounts, A.D. is bonded with her foster family. The 

family resides in Maricopa County, and not within the Community’s 

boundaries; accordingly, because A.D. has never resided or been domiciled 

within the Community’s reservation, the Community could not exercise 
GRIC v. DCS, et al.

Opinion of the Court

4

¶3 On August 27, 2014, DCS filed a dependency petition on 

behalf of A.D. The Community was provided notice of the dependency 

proceedings, and on October 3, 2014, formally moved to intervene pursuant 

to 25 U.S.C. § 1911(c).

6 The juvenile court granted the motion to intervene, 

and the Community continued to be involved throughout the case.

¶4 On February 20, 2015, the juvenile court found A.D. 

dependent.7 Pursuant to DCS’s request, the court ordered a case plan of 

severance and adoption, and on March 4, 2015, DCS moved for termination 

of the parent-child relationship. The Community received notice of the 

motion for termination. See 25 U.S.C. § 1912.

¶5 On March 18, 2015, the juvenile court terminated the parental 

rights of A.D.’s biological parents. At that time, the court found the foster 

parents were an adoptive placement meeting all of A.D.’s needs. The court 

also found the foster parents had demonstrated a willingness to honor 

A.D.’s cultural heritage, including by making arrangements to ensure her 

continued exposure to the Community’s culture. The Community had not 

provided an alternative ICWA-compliant placement and agreed that good 

cause existed to deviate from the ICWA placement preferences.8 See 25 

 

exclusive jurisdiction over A.D. See 25 U.S.C. § 1911(a). Nonetheless, the 

Community did not object to placement of A.D. with the foster parents; nor 

has the Community objected to A.D. remaining with them during the 

course of these proceedings.

6 Under 25 U.S.C. § 1911(c), “[i]n any State court proceeding for the 

foster care placement of, or termination of parental rights to, an Indian 

child, the Indian custodian of the child and the Indian child’s tribe shall 

have a right to intervene at any point in the proceeding.”

7 By February 2015, the foster parents had indicated they wanted to 

adopt A.D. if her biological parents’ rights were terminated. Meanwhile, 

the Community sought to find an ICWA-compliant placement, but a 

maternal aunt identified as a possible placement did not pass the necessary 

background check.

8 The Community requested A.D. remain in her current placement 

until an ICWA-compliant placement could be identified, and thereafter, the 

Community made further unsuccessful efforts to identify a placement 

compliant with ICWA preferences.
GRIC v. DCS, et al.

Opinion of the Court

5

U.S.C. § 1915(a)-(b). DCS, as the legal guardian of A.D., was granted 

authority by the juvenile court to consent to her adoption. No objection or 

notice of appeal was filed challenging termination of the biological parents’ 

parental rights.

¶6 On June 2, 2015, the foster parents moved to intervene under 

Rule 24, Ariz. R. Civ. P., and expressed a desire to adopt A.D. At a June 5 

Report and Review hearing, the Community requested additional time to 

respond in writing to the motion to intervene, but failed to file a response, 

and the juvenile court granted the foster parents’ motion to intervene. Soon 

thereafter, the foster parents filed a petition to adopt A.D., and although 

adoption hearings were scheduled, the juvenile court granted the 

Community’s motion to stay the adoption proceedings.

 II. The Motion to Transfer Jurisdiction

¶7 On August 18, 2015, the Community moved to transfer 

jurisdiction of the remaining proceedings to the Community’s Children’s 

Court pursuant to 25 U.S.C. § 1911(b).

9 In its motion, the Community noted 

that the State of Arizona, through DCS, supported the motion, but the foster 

parents and A.D.’s guardian ad litem (“GAL”) objected to the motion.10 The 

GAL filed a written objection to the motion to transfer on September 11, 

2015, and, pursuant to the juvenile court’s minute entry order issued after 

the September 29 Report and Review hearing, the foster parents filed a 

response to the motion to transfer on October 13, 2015.

¶8 On December 9, 2015, and January 5, 2016, the juvenile court 

heard testimony on whether good cause existed to deny the Community’s 

 

9 The Community also filed a motion to change the physical custody 

of A.D. to a placement within the Community, but withdrew that motion 

on September 29, 2015, after its proposed placement “fell through.”

10 Meanwhile, pursuant to an August 11, 2015 Report and Review 

hearing, the juvenile court issued a minute entry filed August 24 in which 

the court held in abeyance the foster parents’ “Motion to Compel, or 

alternatively, to Waive, Consent” for A.D. to be adopted, pending 

jurisdiction being established, and scheduled a Report and Review hearing 

on September 29, 2015, and evidentiary hearings on December 9, 2015, and 

January 5, 2016.
GRIC v. DCS, et al.

Opinion of the Court

6

motion to transfer jurisdiction.11 See generally 25 U.S.C. § 1911(b). Both sides 

offered evidence regarding several factors, including whether the 

Community’s Children’s Court was a convenient forum, the degree to 

which A.D. had bonded with her foster family, and the possible effects of a 

potential change in placement for A.D., after which the juvenile court took 

the matter under advisement.

 III. The Under Advisement Ruling

¶9 In a ruling filed January 29, 2016, the juvenile court denied the 

Community’s motion to transfer jurisdiction after concluding the GAL and 

foster parents had established good cause to deny the motion by clear and 

convincing evidence. The court based its ruling in part on the possible 

harmful effects of a potential change in placement for A.D.

¶10 The Community filed a timely notice of appeal. We have 

jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-

235(A) (2014) and Rule 103(A) of the Arizona Rules of Procedure for the 

Juvenile Court.

ANALYSIS

¶11 Noting that the 2015 BIA Guidelines provide that a potential 

change in placement is not a ground for good cause to deny a motion to 

transfer,12 the Community argues the juvenile court erred in finding good 

 

11 Near the completion of the January 5 hearing, the Community’s 

ICWA social worker identified for the first time an unnamed potential 

ICWA-compliant placement who was purportedly culturally related to 

A.D. That placement had no contact with A.D., however, and the 

Community does not mention that potential placement on appeal.

12 See 2015 BIA Guidelines, 80 Fed. Reg. 10156, C.3.(c) (“In determining 

whether good cause exists, the court may not consider whether the case is 

at an advanced stage or whether transfer would result in a change in the 

placement of the child . . . .”). “Although the Guidelines are not binding, 

we nonetheless consider them when interpreting ICWA.” Gila River Indian 

Cmty. v. Dep’t of Child Safety, 238 Ariz. 531, 535, ¶ 16, 363 P.3d 148, 152 (App. 

2015). Moreover, the 2016 BIA Final Rule, issued June 14, 2016, and effective 

December 12, 2016, is instructive. “The final rule prohibits a finding of good 

cause based on predictions of whether the transfer could result in a change 

in the placement of the child[.]” 2016 BIA Final Rule, 81 Fed. Reg. 38822, J.
GRIC v. DCS, et al.

Opinion of the Court

7

cause to deny its motion to transfer jurisdiction to the Community’s 

Children’s Court. We need not directly address this issue, however, or the 

numerous additional arguments raised by the parties13 and amici because 

we find one threshold issue dispositive:14 Does 25 U.S.C. § 1911(b) of ICWA 

allow transfer to tribal court of state preadoptive and adoptive placement

proceedings occurring after parental rights have terminated? We answer 

that question in the negative.

I. Standard of Review

¶12 We review de novo the application and interpretation of the 

law, including statutes. Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 

334, ¶ 10, 198 P.3d 1203, 1206 (2009); Michael J., Jr. v. Michael J., Sr., 198 Ariz. 

154, 156, ¶ 7, 7 P.3d 960, 962 (App. 2000). As a general rule, we look to the 

plain language of a statute because it is the best evidence of legislative 

intent. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996); In 

re Estate of Jung, 210 Ariz. 202, 204, ¶ 12, 109 P.3d 97, 99 (App. 2005); In re 

Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App. 2001). Only if the 

plain meaning of the language is not clear do we consider other factors, 

such as the context of the statute, its historical background, its effects and 

consequences, and the spirit and purpose of the law. State v. Garza 

Rodriguez, 164 Ariz. 107, 112, 791 P.2d 633, 638 (1990); Estate of Jung, 210 

Ariz. at 204, ¶ 12, 109 P.3d at 99. Also, when possible, we interpret statutory 

language in a way that gives meaning to each word and clause, and avoids 

making any part of a statute superfluous, contradictory, void, or 

insignificant. See Devenir Assocs. v. City of Phoenix, 169 Ariz. 500, 503, 821 

 

13 At the December 9, 2015 evidentiary hearing, DCS argued that 

neither the GAL nor the foster parents had standing to object to the motion 

to transfer jurisdiction. On appeal, the Community again raises the issue, 

arguing the GAL and foster parents lack standing under 25 U.S.C. § 1911(b) 

to challenge the transfer. We disagree. The GAL advocates for A.D., who 

is a party, and the juvenile court granted the foster parents’ motion to 

intervene pursuant to Rule 24, Ariz. R. Civ. P. Accordingly, both are parties 

in this case. See Ariz. R.P. Juv. Ct. 37(A).

14 This court will affirm the juvenile court’s decision if correct for any 

reason. See Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9, 130 P.3d 538, 540 

(App. 2006); Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 337, 909 P.2d 399, 404 

(App. 1995) (“[W]e will affirm the trial court’s decision if it is correct for any 

reason, even if that reason was not considered by the trial court.”).
GRIC v. DCS, et al.

Opinion of the Court

8

P.2d 161, 164 (1991); Garza Rodriguez, 164 Ariz. at 112, 791 P.2d at 638; State 

v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App. 1992).

II. Discussion

¶13 For purposes of our discussion, we bear in mind that the 

progression of A.D.’s case has involved separate and distinct juvenile court 

proceedings, each with its own statutory requirements. DCS obtained 

temporary physical custody of A.D. in August 2014, see A.R.S. § 8-821

(Supp. 2015), placed A.D. in a licensed foster home for care, see A.R.S. § 8-

514 (Supp. 2015), and filed a dependency petition, see A.R.S. § 8-841 (2014). 

After the court found A.D. dependent, DCS moved for termination of 

parental rights pursuant to A.R.S. § 8-533(B)(1), (3), and (8)(b) (Supp. 2015).

The court then terminated the rights of the biological parents, placed A.D. 

in the legal care, custody, and control of DCS, affirmed the current 

placement (the foster parents) as an adoptive placement, and ordered DCS 

to carry out a plan for permanent placement. The foster parents later filed 

a petition to adopt A.D. See A.R.S. § 8-109 (2014).

15 Only then did the 

Community seek to transfer jurisdiction from the juvenile court to the 

Community’s Children’s Court pursuant to 25 U.S.C. § 1911(b).

¶14 Subsection (b) of 25 U.S.C. § 1911 provides as follows:

(b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, 

or termination of parental rights to, an Indian child not 

domiciled or residing within the reservation of the Indian 

child’s tribe, the court, in the absence of good cause to the 

contrary, shall transfer such proceeding to the jurisdiction of 

the tribe, absent objection by either parent, upon the petition 

of either parent or the Indian custodian or the Indian child’s 

tribe: Provided, That such transfer shall be subject to 

declination by the tribal court of such tribe.

¶15 As the plain language of 25 U.S.C. § 1911(b) provides, “state 

court proceedings are required to be transferred to tribal jurisdiction where 

’foster care placement’ or ‘termination of parental rights’ is the matter at 

issue.” In re A.P., 962 P.2d 1186, 1189, ¶ 19 (Mont. 1998). As the Supreme 

 

15 Provisions regarding dependency are found in Chapter 4, Articles 8-

10, of Title 8 of the Arizona Revised Statutes, while provisions regarding 

termination of parental rights are found in Chapter 4, Article 5, and 

provisions regarding adoption are found in Chapter 1 of Title 8.
GRIC v. DCS, et al.

Opinion of the Court

9

Court noted in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 

36 (1989):

At the heart of the ICWA are its provisions concerning 

jurisdiction over Indian child custody proceedings. Section 

1911 lays out a dual jurisdictional scheme. Section 1911(a) 

establishes exclusive jurisdiction in the tribal courts for 

proceedings concerning an Indian child “who resides or is 

domiciled within the reservation of such tribe,” as well as for 

wards of tribal courts regardless of domicile. Section 1911(b), 

on the other hand, creates concurrent but presumptively 

tribal jurisdiction in the case of children not domiciled on the 

reservation: on petition of either parent or the tribe, statecourt proceedings for foster care placement or termination of 

parental rights are to be transferred to the tribal court, except 

in cases of “good cause,” objection by either parent, or 

declination of jurisdiction by the tribal court.

(Footnote omitted; emphasis added.)

¶16 Under ICWA, a “child custody proceeding” includes foster 

care placement, termination of parental rights proceedings, preadoptive 

placement, and adoptive placement of an Indian child. 25 U.S.C. § 1903(1). 

Each of these four terms is specifically defined within the statute, and these 

federal definitions of child custody proceedings generally are consistent 

with state court proceedings involving an Indian child, though they may be 

labeled differently under state law. See In re Guardianship of Ashley Elizabeth 

R., 863 P.2d 451, 453 (N.M. Ct. App. 1993) (determining that a state 

guardianship petition fits the ICWA definition of a foster care placement).

¶17 ICWA defines the term “foster care placement” as “any action 

removing an Indian child from its parent or Indian custodian for temporary 

placement in a foster home or institution or the home of a guardian or 

conservator where the parent or Indian custodian cannot have the child 

returned upon demand, but where parental rights have not been terminated.” 

25 U.S.C. § 1903(1)(i) (emphasis added). ICWA further defines the term 

“termination of parental rights” as “any action resulting in the termination 

of the parent-child relationship.” 25 U.S.C. § 1903(1)(ii). Accordingly, 

under § 1911(b), ICWA provides only for transfer of state juvenile court 

proceedings before termination of parental rights, and not for post-
GRIC v. DCS, et al.

Opinion of the Court

10

termination preadoptive and adoptive placements.16 See In re A.P., 962 P.2d 

at 1189, ¶ 20.

¶18 In this case, neither A.D.’s biological parents nor the 

Community sought to transfer the proceedings from the juvenile court to 

the Community’s Children’s Court before termination of parental rights.

17

By the time the Community moved to transfer, A.D.’s case had progressed 

to the point where the biological parents’ rights had been terminated and 

legal custody had been permanently placed with DCS, the juvenile court 

had found the foster parents were an adoptive placement, and the court had 

authorized DCS to facilitate permanent placement of A.D. through 

adoption. Further, an adoption petition had been filed. By not moving to 

transfer jurisdiction before termination of the biological parents’ rights, the 

Community effectively waived its right to seek transfer of jurisdiction 

under 25 U.S.C. § 1911(b).

¶19 Although no court in Arizona has previously addressed this 

issue, our conclusion is supported by the decisions of other state courts 

interpreting ICWA and the plain language of 25 U.S.C. § 1911(b). Courts 

examining this question have concluded that the transfer provision of 25 

U.S.C. § 1911(b) only applies to foster care placement proceedings and 

termination of parental rights proceedings, and does not apply to 

proceedings following the termination of parental rights. See In re A.P., 962 

P.2d at 1191, ¶ 28; In re Welfare of the Child of R.S. & L.S., 805 N.W.2d 44, 50-

51 (Minn. 2011); In re J.B., 900 P.2d 1014, 1016 (Okla. Civ. App. 1995), 

overruled by In re M.S. & K.S., 237 P.3d 161, 167, ¶ 19 (Okla. 2010); see also

Thompson v. Fairfax Cty. Dep’t of Family Servs., 747 S.E.2d 838, 853 (Va. Ct. 

App. 2013) (“ICWA allows tribes to seek the transfer to a tribal court in two 

kinds of proceedings: ‘foster care placement’ and ‘termination of parental 

rights.’”); Nebraska v. Elise M. (In re Zylena R.), 825 N.W.2d 173, 182 (Neb. 

2012) (“[W]e conclude that ICWA . . . contemplate[s] four different types of 

child custody proceedings, two of which must be transferred from a state 

 

16 Further, ICWA defines the term “preadoptive placement” as “the 

temporary placement of an Indian child in a foster home or institution after 

the termination of parental rights, but prior to or in lieu of adoptive 

placement,” and defines “adoptive placement” as “the permanent 

placement of an Indian child for adoption, including any action resulting in 

a final decree of adoption.” 25 U.S.C. § 1903(1)(iii-iv) (emphasis added).

17 We also note the Community did not object to the proceedings 

taking place in juvenile court or to the placement orders, and did not appeal 

the court’s order terminating parental rights.
GRIC v. DCS, et al.

Opinion of the Court

11

court to a tribal court upon proper motion in the absence of good cause to 

the contrary. . . . The State’s argument that a foster care placement 

proceeding and a termination of parental rights proceeding are a single 

‘proceeding’ . . . is inconsistent with the plain language of ICWA . . . .”); but 

see In re M.S. & K.S., 237 P.3d at 166, ¶ 14 (holding that 25 U.S.C. § 1911(b)

does not preclude tribal court jurisdiction when transfer is requested after 

parental rights are terminated). The 2016 BIA Final Rule is also instructive 

and supports our view. See 2016 BIA Final Rule, 81 Fed. Reg. 38822, J(1),

Response to Comment (“Like the statute, the final rule addresses transfer 

of foster-care-placement and termination-of-parental-rights proceedings. 

See FR § 23.115; 25 U.S.C. 1911(b).”); 38823, (J)(1), Response to Comment 

(“The final rule clarifies in the definitions that, as relevant here, a 

‘proceeding’ is a foster-care-placement or termination-of-parental rights 

proceeding.”).

¶20 As the Minnesota Supreme Court explained in In re Welfare of 

the Child of R.S. & L.S.:

We are persuaded that Congress did not intend to permit the 

transfer of adoptive and preadoptive placement proceedings 

to tribal courts. We cannot assume that, having specifically 

used a term in section 1911(a)—“child custody proceeding”—

that includes preadoptive and adoptive proceedings, Congress 

was simply careless in using terms in section 1911(b)—“foster 

care placement” and “termination of parental rights”—that 

exclude preadoptive and adoptive placement proceedings. See 

Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 

L.Ed.2d 17 (1983) (“We refrain from concluding here that the 

differing language in the two subsections has the same 

meaning in each. We would not presume to ascribe this 

difference to a simple mistake in draftsmanship.”).

Rather, we are bound by the plain language of the statute. 

Under the plain language of 25 U.S.C. § 1911(b), tribal courts 

have presumptive jurisdiction over two types of child custody 

proceedings—foster care placement and termination of 

parental rights—involving Indian children who do not reside 

and are not domiciled on their tribe’s reservation. But, again 

under the plain language of 25 U.S.C. § 1911(b), Congress has 

not granted tribal courts jurisdiction over preadoptive and 

adoptive placement proceedings involving Indian children 

who do not reside and are not domiciled on their tribe’s 

reservation. Where a statute is clearly limited to specifically 
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Opinion of the Court

12

enumerated subjects, we do not extend its application to other 

subjects by process of construction. Martinco v. Hastings, 265 

Minn. 490, 495, 122 N.W.2d 631, 637 (1963).

The [Minnesota] court of appeals concluded that because 

section 1911(b) neither expressly requires nor expressly 

prohibits transfer of other types of child custody 

proceedings—preadoptive and adoptive placement 

proceedings—the statute was ambiguous. 793 N.W.2d at 757. 

We disagree. “[S]ilence in a statute regarding a particular 

topic does not render the statute unclear or ambiguous unless 

the statute is susceptible of more than one reasonable 

interpretation.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 

753, 760 (Minn. 2010). Moreover, we do not read the differing 

language in the two subsections as congressional “silence.” 

Rather, we read the differing language as drawing an express 

distinction between foster care and termination of parental 

rights proceedings on the one hand, and preadoptive and 

adoptive placement proceedings on the other.

The differing language in the two subsections cannot be read 

in isolation from the other provisions of ICWA. See State v. 

Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011) (“When 

interpreting statutes, we do not examine different provisions 

in isolation.”)[.] We construe statutes “as a whole” and “in 

the light of their context.” See Christensen v. Hennepin Transp. 

Co., Inc., 215 Minn. 394, 409, 10 N.W.2d 406, 415 (1943). As 

discussed above, Congress distinguished among the four 

types of child custody proceedings—foster care placement, 

termination of parental rights, preadoptive placement, and 

adoptive placement—throughout ICWA. For example, it 

required the “testimony of qualified expert witnesses” in 

foster care placement and termination of parental rights 

proceedings, but not in preadoptive and adoptive placement 

proceedings. 25 U.S.C. § 1912(e), (f). It allowed for the 

invalidation of foster care placement and termination of 

parental rights for violation of certain procedural provisions 

of ICWA, but did not permit the invalidation of preadoptive 

or adoptive placements. 25 U.S.C. § 1914. It gave the child’s 

tribe the right to notice and intervention in foster care and 

termination proceedings, but not adoption proceedings. See

25 U.S.C. §§ 1911(b), 1912(a). These distinctions support our 

conclusion that in 25 U.S.C. § 1911(b), Congress intended to 
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Opinion of the Court

13

limit the types of child custody proceedings that can be 

transferred to tribal courts to foster care placement and 

termination of parental rights.

805 N.W.2d at 50-52 (rejecting any suggestion that 25 U.S.C. § 1911(b) is 

ambiguous).

¶21 In this case, the Community filed its motion to transfer

jurisdiction from the juvenile court to the Community’s Children’s Court

after the termination, and at a time when there were no foster care 

placement or active termination of parental rights proceedings before the 

court. The Community’s motion relied solely on 25 U.S.C. § 1911(b) as 

authority for its claim of presumptive jurisdiction. Under the plain 

language of ICWA, however, the Community was precluded from relying 

on § 1911(b) to assume jurisdiction through a motion to transfer the 

proceedings.

18 The juvenile court therefore did not err in denying the 

Community’s motion to transfer jurisdiction.

 

18 Because the Community sought transfer of jurisdiction only under 

the authority of 25 U.S.C. § 1911(b), we do not analyze or address the 

propriety of such a motion under any other authority. See In re Welfare of 

the Child of R.S. & L.S., 805 N.W.2d at 57 (Dietzen, J., concurring) (“The 

court’s consideration of those issues is dictum and not binding on the 

court.”). See also 2016 BIA Final Rule, 81 Fed. Reg. 38822, J(1), Response to 

Comment (“Parties may request transfer of preadoptive and adoptive 

placement proceedings, but the standards for addressing such motions are 

not dictated by ICWA or these regulations. Tribes possess inherent 

jurisdiction over domestic relations, including the welfare of child citizens 

of the Tribe, even beyond that authority confirmed in ICWA. . . . Thus, it 

may be appropriate to transfer preadoptive and adoptive proceedings 

involving children residing outside of a reservation to Tribal jurisdiction in 

particular circumstances.” (citations omitted)); 25 U.S.C. § 1902 (providing 

a Congressional declaration of policy stating that ICWA establishes 

“minimum Federal standards for the removal of Indian children from their 

families and the placement of such children in foster or adoptive homes 

which will reflect the unique values of Indian culture”).
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Opinion of the Court

14

CONCLUSION

¶22 The juvenile court’s order denying the Community’s motion 

to transfer jurisdiction pursuant to 25 U.S.C. § 1911(b) is affirmed.